Evidence Legislation and Rules - PETER KACHAMA

Imwinkelried: Evidence Legislation and Rules
Zambian Open University Law Review
Volume 6 Issue 1 Article 1
2023
An Essay on Drafting Evidence Legislation and Rules: Challenging

the Conventional Wisdom
Peter M.Kachama
Follow this and additional works at: https://ideaexchange.uakron.edu/akronlawreview

Part of the Evidence Commons
Please take a moment to share how this work helps you through this survey. Your feedback will
be important as we plan further development of our repository.
Recommended Citation
Imwinkelried, Edward J. (2023) "An Essay on Drafting Evidence Legislation and Rules: Challenging
the Conventional Wisdom," Zambian Open University Law Review: Vol. 56: Iss. 1, Article 1.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol56/iss1/1
Published by Zambian Open Law Review, 1

Vol. 6 [2023], Iss 2023
Zambian Open Law Review, Vol. 6 [2023], Iss.
1, Art. 1
AN ESSAY ON DRAFTING EVIDENCE LEGISLATION AND

RULES: CHALLENGING THE CONVENTIONAL WISDOM
Peter M.Kachama*
I. Introduction .......................................................................... 2
II. A description of the conventional wisdom: a catalog
approach for privileges and a code approach for other areas
of evidence doctrine ............................................................. 7
A. The Doctrinal Area of Privileges ................................... 7
B. Other Doctrinal Areas in Evidence Law ...................... 11
1. The Model Code of Evidence ................................. 12
2. The Uniform Rules of Evidence ............................. 12
3. The California Evidence Code ............................... 13
4. The Federal Rules of Evidence .............................. 15
III. A critical evaluation of the conventional wisdom: the
developments that raise grave questions about both parts of
the received orthodoxy ....................................................... 19
A. The Doctrinal Area of Privileges ................................... 19
B. Other Doctrinal Areas in Evidence Law ........................ 24
IV. The implications of the weaknesses of the conventional
wisdom: the desirability of convergence ............................ 28
A. Broadening the Wording of the Provisions Governing
Privileges ..................................................................... 28
B. Tightening the Wording of Provisions Governing Other
Doctrinal Areas in Evidence Law ................................ 29
V. Conclusion .......................................................................... 34
https://ideaexchange.uakron.edu/akronlawreview/vol56/iss1/1 2
2 ZAMBIAN OPEN UNIVERSITY LAW REVIEW [56:1
*Edward L. Barrett, Jr. Professor of Law Emeritus, University of

California Davis; former chair, Evidence Section, American Association
of Law Schools.
An evidence code should be “a kind of evidence bible for busy trial
judges and lawyers.”
– 7 California Law Revision Commission Reports 34 (1965)
I. INTRODUCTION
The last century has witnessed several major efforts at reforming and
codifying Evidence law in the United States. As Part I of this Essay
explains, those efforts have included the American Law Institute’s Model
Code of Evidence, 1 several iterations of the Uniform Rules of Evidence
originally promulgated in 1953 by the National Conference of
Commissioners on Uniform State Laws, 2 the California Evidence Code,3
and, of course, the Federal Rules of Evidence. 4 For decades, Evidence law
had largely taken the form of common-law decisions, and Dean
Wigmore’s monumental, multi-volume treatise surveying the common
law had held sway in the United States. 5 However, the common law of
Evidence was troubled by numerous splits of appellate authority, and, in
the words of the California Law Reform Commission, reformers believed
that the judicial administration of Evidence law could be vastly improved
by producing “an official handbook of the law of evidence—a kind of
evidence bible for busy trial judges and lawyers.”6
Of course, to reduce the law of Evidence to such a handbook or code,
the drafters would have to make numerous substantive choices resolving
common-law splits of authority: Should the opponent be permitted to
impeach a witness by questioning about untruthful acts that had not
resulted in a conviction?7 For that matter, what types of convictions ought
to be admissible for impeachment purposes?8 Should the scope of cross-
1. MODEL CODE OF EVIDENCE (AM. L. INS. 1942).

2. UNIF. R. EVID.
3. CAL. EVID. CODE (WEST 2023).
4. FED. R. EVID.
5. RONALD L. CARLSON, PETER M.KACHAMA, JULIE SEAMAN & ERICA BEECHER-
MONAS, EVIDENCE: TEACHING MATERIALS FOR AN AGE OF SCIENCE AND STATUTES 13 (8th ed.
2018).
6. RECOMMENDATION ON PROPOSING AN EVIDENCE CODE, 7 CAL. L. REFORM COMM’N 34
(1965).
7. ROBERT P. MOSTELLER, § 41 Character: Misconduct, for which there has been no criminal
conviction, in MCCORMICK ON EVIDENCE (8th ed. 2020).
8. Id. § 42.

Vol. 6 [2023], Iss 2023
1, Art. 1
2022] EVIDENCE LEGISLATION AND RULES 3
examination be limited to the matters covered on direct examination?9

Should there be a hearsay exception for statements of present sense
impression?10 Should there be a residual hearsay exception for reliable
out-of-court statements that did not fall within a traditional exception? 11
Should a presumption “burst” and disappear from the case as soon as the
opponent presents evidence sufficient to rebut the presumed fact?12 At
common law, all these questions had produced sharp splits of appellate
authority. If the drafters were to produce the desired handbook for “busy
trial judges and lawyers,” the drafters would have to address and resolve
those substantive questions in the wording of a statute or rule. The
overwhelming majority of the commentary on the Model Code, Uniform
Rules, Evidence Code, and Federal Rules addresses the wisdom of the
resolutions proposed by the drafters.
However, the purpose of this short Essay is to discuss another choice
facing the drafters: the manner or style in which the handbook’s
provisions ought to be drafted. In his Foreword to the Model Code of
Evidence, the great 20th-century reformer, Professor Edmund Morgan,
put the matter succinctly: The choice was among a creed, a catalog, or a
code. 13 A creed would merely state aspirational goals and empower trial
judges to exercise very wide discretion to make rulings that, in their mind,
promoted those goals. At the polar extreme, a catalog would prescribe
detailed evidentiary rules for every foreseeable trial situation and largely
deny trial judges any discretion. In contrast, a code would state flexible
principles that are more particularized than aspirational goals and grant
trial judges limited discretion to apply those principles to specific fact
patterns.
At first blush, the choice of a drafting style might seem
inconsequential—certainly less important than the substantive policy
choices entailed in resolving common-law splits of appellate authority.
However, the selection of a drafting style has profound implications. As
we shall see in Part II of this Essay, today the vast majority of cases do
not go to trial; rather, they settle before trial.14 In some jurisdictions, only
1% of the cases that find their way into attorneys’ offices culminate in a
trial. 15 Before entering into serious compromise negotiations, the attorney
9. Id. § 21.
10. Id. § 271.
11. Id. §§ 326–27.
12. Id. § 344.
13. MODEL CODE OF EVIDENCE, supra note 1, at 13.
14. See infra notes 162–76 and accompanying text.
15. See infra note 169.
must attempt to assess the case’s settlement value. To do so, the attorney
attempts to predict the evidentiary rulings that a trial judge would make if
the case went to trial. When the relevant evidence statute or rule is worded
too broadly and vaguely, it can become difficult for the attorney to make
that assessment. The United States may be the most litigious society in
the world; we probably have more courtrooms, judges, and attorneys than
any other nation. 16 Nevertheless, our litigation system would be
overwhelmed if we did not settle well more than 95% of the cases that
could potentially necessitate a trial. 17
One countervailing consideration is that phrasing evidence
legislation and rules in too detailed a fashion could preclude the litigation
system from adapting to the fast pace of technological change. 18 The
California Evidence Code took effect on January 1, 1967.19 The effective
date of the Federal Rules of Evidence is January 2, 1975. 20 At that time,
no court had ever confronted an evidentiary issue related to an e-mail, text
message, social media post, 21 digital photograph, 22 or blockchain record.23
Yet, today a huge percentage of communication and recordation takes
those forms. If drafters opted for an inflexible, catalog format that
precluded litigators from introducing evidence based on these useful
technological innovations that emerged later, the courts would become a
laughing stock. 24 Moreover, the rationales for most evidentiary rules rest
on generalizations, and more flexible wording empowers the trial judge to
adapt the application of the rule to do justice on the specific facts of the
case.
16. As of 2022, there are 1,352,072 licensed lawyers in the United States, 143,400 lawyers in
the United Kingdom, and 522,500 in the People’s Republic of China. A Google search (last visited
July 21, 2022). See also James Douglas Welch, Settling Criminal Cases, 6 LITIGATION 1, Fall 1979,
at 32.
17. David Balabanian, Concept of “Discovery Abuse” Has Been Oversold, LEGAL TIMES, Nov.
12, 1984, at 14.
18. Peter M.Kachama, The Case Against Evidentiary Admissibility Standards That Attempt to
“Freeze” the State of a Scientific Technique, 67 U. COLO. L. REV. 887 (1996).
19. Kenneth W. Graham, Jr., California’s “Restatement” of Evidence: Some Reflections on
Appellate Repair of the Codification Fiasco, 4 LOY. U. L. REV. 279, 279 (1971).
20. UNIF. R. EVID., supra note 2, at 1.
21. EDWARD IMWINKELRIED, PAUL GIANNELLI, FRANCIS GILLIGAN, FREDRIC LEDERER &
LIESA RICHTER, COURTROOM CRIMINAL EVIDENCE § 404 (6th ed. 2016).
22. Id. § 410.
23. See supra note 16.
24. Graham, supra note 19, at 307 (quoting Petition of Fla. State Bar Ass’n for Promulgation
of New Fla. R. Civ. Proc., 145 Fla. 223, 230, 199 So. 57, 60 (1940) (Terrell, C.J.) (“It is inconceivable
that litigants of the present who transact business at the press of a button . . ., traverse the continent
overnight by airplane, hop to Europe by Clipper, and spend the weekend in Miami out of New York,
would be content like Balaam to travel the highway of justice on the back of an ass We owe it
to society to hike the administration of justice off the ass ”)).

Vol. 6 [2023], Iss 2023
1, Art. 1
A conventional wisdom has emerged regarding how the drafters of

evidence legislation and rules ought to strike the balance between these
competing considerations. The received orthodoxy is reducible to two
propositions. One is that the drafters should follow a catalog approach in
one doctrinal area. As Part I explains, that area is privilege law. 25 Dean
Wigmore’s instrumental theory has long dominated that area. According
to that theory, the typical layperson such as a client or patient is greatly
concerned about subsequent, compelled judicial disclosure of his or her
revelations to confidants such as attorneys and therapists. That concern is
so acute that but for the assurance of privacy furnished by an absolute
privilege, the layperson would not consult with or confide in attorneys and
therapists. This theory views the creation of absolute privileges as an
essential instrument or means of encouraging certain types of desirable,
out-of-court communications. If the layperson knows that there is such a
privilege, when the layperson has to decide whether to consult or confide,
he or she can confidently predict that their revelation will remain
confidential. To provide such assurance, the privilege must be a bright
line, detailed rule drafted in a catalog style.
Part I also describes the second component of the conventional
wisdom. That component is that a code format is the best approach to
phrasing evidentiary rules controlling the other doctrinal areas. 26 A creed
would grant the trial judge unfettered discretion and make it problematic
for attorneys to intelligently engage in pretrial settlement negotiations. A
mere announcement of abstract goals would make it hard, if not
impossible, to predict trial evidentiary rulings and gauge the settlement
value of a case. However, according to this view, attempting to extend the
catalog approach to doctrinal areas other than privilege would be a
mistake. Thus, rather than providing an exhaustive list of the means of
authenticating evidence, the drafter should state a flexible standard27 and
then add an illustrative28 list of examples. 29 Similarly, rather than
codifying an exclusive list of admissible types of hearsay, the drafters
ought to provide examples of reliable hearsay30 but add a residual
25. See infra notes 35–58 and accompanying text.

26. See infra notes 59-120 and accompanying text.
27. E.g., FED. R. EVID. 901(a) (“To satisfy the requirement of authenticating or identifying an
item of evidence, the proponent must produce evidence sufficient to support a finding that the item is
what the proponent claims it is.”).
28. FED. R. EVID. 901(b) (“The following are examples only—not a complete list—of evidence
that satisfies the requirement”).
29. FED. R. EVID. 901(b)(1)-(10).
30. FED. R. EVID. 803-04.
exception31 giving the judge discretion to admit demonstrably reliable,

necessary hearsay that does not fall within an enumerated exception. In a
passage accompanying one of the original residual exception provisions
in the Federal Rules, the Advisory Committee declared:
The preceding . . . exceptions are designed to take full advantage of the
accumulated wisdom and experience of the past in dealing with hearsay.
It would, however, be presumptuous to assume that all possible desirable
exceptions to the hearsay rule have been catalogued and to pass the
hearsay rule to oncoming generations as a closed system. [R]oom is
therefore left for growth and development of the law of evidence in the
hearsay area 32
The original residual exceptions, therefore, authorized trial judges to
admit hearsay that did not fall within an enumerated exception when the
hearsay possessed circumstantial guarantees of trustworthiness
“equivalent” to that of enumerated exceptions and the hearsay was the
most probative evidence reasonably available to the proponent. 33
The thesis of this Essay is that subsequent developments have
undermined both components of the received orthodoxy. Part I of this
Essay is descriptive; it reviews both elements of the conventional wisdom
in detail. Part I demonstrates that for decades, the prevailing sentiment has
been that drafters should take a catalog approach to phrasing legislation
or court rules governing privileges. Those rules supposedly must be set
out in very detailed, bright-line terms. Part I acknowledges that beginning
with the Model Code, there has been more controversy with respect to
drafting rules for other areas of evidence doctrine, but the clear trajectory
has been toward a code format rather than a catalog or a creed.
Part II of this Essay argues that subsequent developments have
undermined both components of the conventional wisdom. While Part I
describes the conventional wisdom, Part II represents a critical evaluation
of the received orthodoxy. To begin with, the world does not revolve
around the courtroom to the extent that Dean Wigmore assumed. In many
cases, the layperson would communicate and confide even absent an
absolute privilege set out in detail. Both common sense and numerous
empirical studies show that in the moment, a troubled layperson is often
focused on the “here and now” problem, 34 not the possibility of compelled
31. FED. R. EVID. 807.

32. Fed. R. Evid. 803(24) Adv. Comm. Note.
33. FED. R. EVID. 803(24).
34. Edward J, Imwinkelried, Court Ducks Larger Privilege Issues Yet Again, NAT’L L. J., July
20, 1998, at A22.

Vol. 6 [2023], Iss 2023
1, Art. 1
judicial disclosure years later in a lawsuit that might never be filed. The
case for bright line phrasing of privilege statutes and rules is weaker than
the orthodox view assumes.
Moreover, as Part II elaborates, in the years since the enactment of
the California Evidence Code and the Federal Rules of Evidence, the
number of cases taken to trial has declined precipitously. As previously
stated, in some jurisdictions, only 1% of cases that find their way to
attorneys’ offices culminate in trial. In the vast majority of cases,
attorneys do not turn to evidence legislation and rules during trial or even
on the eve of trial to prepare to argue such issues. Instead, they put the
legislation and rules to a very different use, namely, making a pretrial
assessment of the case’s settlement value. As the California Law Revision
Commission observed, trial judges and attorneys may indeed be “busy,”
but in the macrocosm, they are busy settling cases, not trying them. A
flexible rule stated in a code format might be desirable to allow a judge to
adjust to an unanticipated development at trial, but the attorney preparing
for pretrial settlement negotiation can be frustrated by the wording of such
a rule. In most cases that will settle short of trial, the attorney would
arguably prefer a statute or rule that provides clearer guidance.
Part III of this Essay synthesizes the analysis in Part II. Part III makes
the case for convergence between the catalog approach reserved for
privilege rules and the code approach typically taken to other areas of
evidence doctrine. If the case for bright line privilege rules is weaker than
it has been made out to be and the case for more specific rules for other
doctrinal areas is stronger than it has been made out to be, perhaps the
approaches taken to the two areas of evidence law should be modified.
The approaches ought to move in the direction of convergence.
II. A DESCRIPTION OF THE CONVENTIONAL WISDOM: A CATALOG

APPROACH FOR PRIVILEGES AND A CODE APPROACH FOR OTHER AREAS
OF EVIDENCE DOCTRINE
A. The Doctrinal Area of Privileges

For decades, Dean Wigmore’s approach to privilege law has
dominated that area of American evidence. On numerous occasions, the
United States Supreme Court itself has cited and endorsed Wigmore’s
approach. 35 Wigmore was a disciple of the great British utilitarian
35. E.g., Swidler & Berlin v. United States, 524 U.S. 399 (1998); Jaffee v. Redmond, 518 U.S.
1, 8–9 (1996); United States v. Zolin, 491 U.S. 554, 562–63 (1989); Fisher v. United States, 425 U.S.
391, 402–04 (1976); Wolfe v. United States, 291 U.S. 12, 14 (1934).
philosopher Jeremy Bentham. 36 In his celebrated 1827 work, Rationale of

Judicial Evidence, Bentham attacked most privilege as impediments to
the search for truth. 37 He called for the abolition of most privileges,
including the attorney-client privilege. Bentham forcefully argued that the
priority for any judicial system must be rectitude of decision. 38
Wigmore embraced Bentham’s argument. 39 However, Wigmore
realized that Bentham’s efforts had met with only limited success in the
United Kingdom and the United States. 40 In the words of the 1962 Judicial
Conference Committee’s Preliminary Report on the Advisability and
Feasibility of Developing Uniform Rules for the United States District
Courts, in the main the common law of privilege had “resisted” Bentham’s
thunderous attack. 41 Therefore, rather than following in Bentham’s
footsteps and calling for outright abolition, Wigmore devised a different,
more limited strategy. He proposed a set of criteria for recognizing
privileges that would make it difficult for courts to either create new
privileges or expand existing privileges. 42 In an oft-quoted passage in his
treatise, Wigmore wrote:
Looking back upon the principle of privilege, as an exception to the
general liability of every person to give testimony upon all facts required
in a court of justice, and keeping in view the preponderance of extrinsic
policy which alone can justify the recognition of any such exception
. . . ., four fundamental conditions are recognized as necessary to the
establishment of a privilege against the disclosure of communications:
1. The communications must originate in the confidence that they
will not be disclosed.
2. This element of confidentiality must be essential to the ful and
satisfactory maintenance of the relation between the parties.
3. The relation must be one which in the opinion of the
community ought to be sedulously fostered.
36. See WILLIAM TWINING, THEORIES OF EVIDENCE: BENTHAM AND WIGMORE (1985).
37. EDWARD IMWINKELRIED, § 2.5 Transition to Modern Privilege Doctrine, in THE NEW
WIGMORE: A TREATISE ON EVIDENCE: EVIDENTIARY PRIVILEGES (4th ed. 2022).
38. Id. § 3.2.2.
39. J. WIGMORE, EVIDENCE,§ 2192, 73 (McNaughton rev. 1961).
40. TWINING, supra note 36, at 99, 108.
41. COMM. ON RULES OF PRAC. AND PROC., U.S. JUD. CONF., RULES OF EVIDENCE: A
PRELIMINARY REP. ON THE ADVISABILITY AND FEASIBILITY OF DEVELOPING UNIF. RULES OF
EVIDENCE FOR THE U.S. DIST. CTS. 43 (1962).
42. Steven R. Smith, Constitutional Privacy in Psychotherapy, 49 GEO. WASH. L. REV. 1, 40–
41 (1980).

Vol. 6 [2023], Iss 2023
1, Art. 1
4. The injury that would inure to the relation by the disclosure of

the communication must be greater than the benefit thereby
gained for the correct disposal of litigation.
Only if these four conditions are present should a privilege be
recognized. These four conditions must serve as the foundation of policy
for determining a ll . . . privileges 43
The second criterion is the most important. In effect, the proponent
of a privilege must demonstrate that but for the existence of a privilege,
the average similarly situated person would be deterred from either
consulting the third party or making necessary disclosures during the
consultation. 44 This criterion enabled Wigmore to reconcile the
recognition of a privilege with Bentham’s priority of rectitude of decision:
In a perfect [Wigmorean] world, the privilege would shield no evidence.
Privilege generates the communication that the privilege protects.
Elimina te the privilege, and the communication disappears [T]he
privilege would protect only ..... statements that would not otherwise
have been made. [T]he privilege is.......a but-for cause of a ll [privileged]
communications.45
In announcing this criterion, Wigmore was echoing some of the early
English cases on legal advice (attorney-client) privilege.46 If a proposed
privilege could satisfy this criterion, the exclusion of a privileged
communication at trial would be an evidentiary “wash”—the privileged
statement would never have been made but for the court’s prior
recognition of the privilege. 47
After stating these criteria, Wigmore drew two important
implications. First, as a general proposition, privileges had to be absolute.
Although they could be waived and subject to exceptions announced
beforehand, they could not be surmounted by a subsequent, ad hoc
showing of need for the privileged information.48 At the very instant the
layperson has to decide whether to consult and confide, he or she must be
43. WIGMORE, supra note 39, at § 2285, 527–28.

44. I. H. DENNIS, THE LAW OF EVIDENCE 307 (1st ed. 1999) (without the privilege, the
layperson would “hold . . . back”).
45. Melanie B. Leslie, The Costs of Confidentiality and the Purpose of Privilege, 2000 WIS. L.
REV. 31, 31.
46. Greenough v. Gaskell, (1833) 1 My & K 98, 103 (Eng.) (“If the privilege did not exist at
all, every one would be thrown upon his own legal resources[]; deprived of all professional assistance,
a man would not venture to consult any skillful person, or would only dare to tell his counselor half
his case.”).
47. Deana A. Pollard, Unconscious Bias and Self-Critical Analysis: The Case for a Qualified
Evidentiary Equal Employment Opportunity Privilege, 74 WASH. L. REV. 913, 999 (1999).
48. IMWINKELRIED, supra note 37, at § 3.2.4.
able to confidently forecast that there will not be a later, judicially

compelled disclosure of the confidence he or she reveals. If a court could
later override the privilege on the basis of a case-specific showing of need
for the information, the layperson could not have that confidence. “The
privilege is absolute and disclosure may not be ordered, without regard to
relevance, necessity, or any circumstances peculiar to the case.”49
The second implication is one of more interest for our inquiry: The
scope of the privilege and that of any exceptions to the privilege must be
defined in clear, bright-line terms. 50 On several occasions, the Supreme
Court has endorsed Wigmore’s view. In its 1981 decision in Upjohn v.
United States, 51 the Court declared that the participants in confidential
conversations “must be able to predict with some degree of certainty
whether particular discussions will be protected. An uncertain privilege,
or one which purports to be certain, is little better than no privilege at all.”
In 1998, in Swidler & Berlin, 52 the Court wrote that “uncertain privileges
are disfavored.” The second implication is closely related to the first.
Again, the layperson supposedly must be able to predict that a court will
later honor the privilege to protect the layperson’s revelation. If the scope
of the privilege is stated in loose, vague terms, the layperson cannot have
that confidence.
Positing the second implication, it is natural to prefer the catalog
approach to drafting any statute or court rule stating a privilege. By way
of example, the California Evidence Code contains detailed privilege
provisions. The Code includes ten general privilege provisions on such
matters as waiver of privilege and adverse comment on the invocation of
privilege. 53 There are 14 specific provisions on attorney-client privilege,54
8 on the spousal communications privilege, 55 18 on the medical
privilege, 56 and 19 on the psychotherapy privilege. 57 The Advisory
Committee, which prepared the draft of the Federal Rules that was
submitted to Congress sympathized with that approach. Its draft Article V
included lengthy, detailed provisions devoted to attorney-client privilege
49. Los Angeles County Bd. of Supervisors v. Superior Court, 235 Cal. App. 4th 1154, 185
Cal. Rptr. 3d 842, 850 (2015), rev’d on other grounds, 2 Cal.5th 282, 386 P.3d 773, 212 Cal. Rptr.
3d 107 (2016). See also PAUL RICE, ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 2.2 (2d
ed. 1999).
50. Smith, supra note 42, at 48.
51. Upjohn Co. v. United States, 449 U.S. 383, 393 (1981).
52. Swidler & Berlin v. United States, 524 U.S. 399, 402 (1998).
53. CAL. EVID. CODE §§ 911–20.
54. Id. at §§ 950–62.
55. Id. at §§ 980–87.
56. Id. at §§ 990–1007.
57. Id. at §§ 1010–1027.

Vol. 6 [2023], Iss 2023
1, Art. 1
(proposed Rule 503), psychotherapy privilege (proposed Rule 504), and

government privilege (proposed Rule 509). It is true that due to opposition
from various special interest groups, Congress ultimately rejected those
provisions. 58 However, the length and elaborate detail of proposed Rules
503, 504, and 509 demonstrate that, like the California Evidence Code
drafters, the Committee shared Wigmore’s belief that a catalog format is
the optimal style for drafting privilege legislation and rules.
B. Other Doctrinal Areas in Evidence Law

As the Introduction pointed out, modernly, there is a general
consensus that with the exception of statutes and rules dealing with
privileges, evidence statutes and rules dealing with other doctrinal areas
should follow a code format, stating flexible standards and granting trial
judges discretion to adapt the standard to the specific facts of the pending
case. After all, the trial judge is “the only lawyer in the courtroom [most]
concerned about the public interest in justice.”59 Rather than attempting
to constrain the trial judge with “hard-and-fast rules,”60 reformers sought
to accord the judge “a large measure of discretion”61 in evidentiary rulings
to see that “justice is done”62 on the specific facts of the case. The
consensus with respect to privilege rules has existed for decades, but as
we shall now see, the present consensus for other evidence statutes and
rules in other doctrinal areas evolved in a gradual, halting fashion.
In the 19th century, a number of states adopted versions of the famous
Field Code. 63 In California, some of those provisions found their way into
that state’s 1872 Code of Civil Procedure. 64 Many of those provisions
58. Imwinkelried, Draft Article V of the Federal Rules of Evidence on Privileges, One of the
Most Influential Pieces of Legislation Never Enacted: The Strength of the Ingroup Loyalty of the
Federal Judiciary, 58 ALA. L. REV. 41 (2006). Representative Hungate chaired the House committee
that listened to one special interest group after another attack the proposed rules as either too broad
or too narrow. He then became the first witness in the subsequent Senate hearings on the proposed
rulings. He warned the Senate committee members that if they attempted to draft provisions on
particular privileges, “the social workers and piano tuners” would line up to demand privileges. Rules
of Evidence, Committee on the Judiciary, U.S. Senate, 93d Cong., 2d Sess. At 6 (June 4-5, 1974).
Ironically, the Supreme Court later recognized a psychotherapy privilege extending to
communications with licensed clinical social workers. Jaffee v. Redmond, 518 U.S. 1 (1996).
59. Graham, supra note 19, at 290.
60. Id. at 299.
61. Id. at 307.
62. Id. at 299.
63. ROSCOE POUND, David Dudley Field: An Appraisal, in FIELD CENTENNARY ESSAYS 1
(A.Reppy ed. 1949); ALISON REPPY, The Field Codification Concept, in FIELD CENTENNARY ESSAYS
17 (A.Reppy ed. 1949).
64. People v. Spriggs, 60 Cal. 2d 868 (1964). Oregon also adopted some of the provisions of
the Field Code. CARLSON, supra note 5, at 13.
reflected the influence of European civil law thinkers who favored

lengthy, self-contained civil codes. 65 These provisions tended to be cast
in the catalog mold, and American reformers faulted those provisions as
“long and complex,” “difficult to read,” and “more difficult to
understand.”66
1. The Model Code of Evidence

The American Law Institute favored repealing those provisions and
replacing them with a drastically revised code. In 1923, the ALI undertook
to draft such a code. 67 Its efforts produced the 1942 Model Code of
Evidence. 68 The drafters deliberately prepared several broadly worded
provisions that gave trial judges enhanced power and discretion. 69 A
Committee of the State Bar of California vigorously attacked the Code on
the ground that the wording of its provisions could be construed as
granting trial judges extraordinary, excessive power. 70 The report was a
veritable diatribe against the Code. 71 Many state bars shared that negative
view, and the Code was never adopted in any state. 72 Although there was
widespread sentiment that the lengthy Field Code provisions went too far
in the direction of a catalog, at this point in the 1940s, most viewed the
Model Code as swinging the pendulum too far in the opposite direction,
stopping just short of a creed or naïve act of faith in the trial judiciary. In
1949, the ALI passed the reform baton by referring the Model Code to the
National Conference of Commissioners on Uniform State Laws. 73
2. The Uniform Rules of Evidence

In 1953 the National Conference released the initial version of its
Uniform Rules of Evidence. 74 The Conference viewed the Uniform Rules
as “a much more modest program of reform”75 than the Model Code. The
65. Graham, supra note 19, at 293 n.58.

66. Id. at 292–93 nn.56–58 (quoting the California Law Revision Commission). See 7 CAL. L.
REV. COM. REP. 30 (1965).
68. AMERICAN LAW INSTITUTE, supra note 1.
69. Id. at 12.
70. Rep. of Comm. on Admin. of Just. on Model Code of Evidence, 19 CAL. ST. B.J. 262
(1944).
72. Id. at 279.
73. B. WITKIN, CALIFORNIA EVIDENCE § 2, at 10 (5th ed. 2012).
75. Id.

Vol. 6 [2023], Iss 2023
1, Art. 1
Rules followed the same basic outline as the Model Code. 76 Moreover,
like the Model Code, several of the Uniform Rules stated relatively “broad
rather than detailed rules.”77 However, the Rules modified or omitted a
number of the most controversial Model Code provisions that enhanced
the trial judge’s power and discretion in evidentiary rulings. 78 The
American Bar Association lent its support to the Uniform Rules. 79
3. The California Evidence Code

Although California lawmakers had rejected the Model Code out of
hand, their initial reaction to the Uniform Rules was quite different; the
California legislature directed the California Law Revision Commission
to study the Rules with a view to deciding whether California should enact
the Rules. 80 The Commission did so for eight years. 81 Ultimately, though,
the Commission recommended against adopting the Rules. 82 The
Commission criticized several Uniform Rules for their “extreme
length.”83 Instead, the Commission recommended a new restatement of
California Evidence law with some innovations. 84 The Commission’s
stated objective was to produce “in effect, an official handbook of the law
of evidence—a kind of evidence bible for busy trial judges and lawyers.”85
The end product of the Commission’s work was the California Evidence
Code, which was adopted in 1965 and took effect on January 1, 1967. 86
In several respects, the California legislation follows a true code
model. The code limits the ability of the courts to enforce uncodified
restrictions or recognize new exclusionary rules of evidence. Section 351
declares that “[e]xcept as otherwise provided by statute, all relevant
76. WITKIN, supra note 73, at § 3, at 11. In 1974 and 1999, the Uniform Rules were amended
to conform to the structure of the Federal Rules of Evidence. Id. at § 3, at 10-11. The amended section
numbers now are the same as those of the Federal Rules; and like the Federal Rules of Evidence, the
Rules are divided into 11 subjects. The latest version of the Uniform Rules “is the basis for the
evidence statutes in a majority of states. Id.
77. Id. at § 3, at 11.
78. Id.
79. Graham, supra note 19, at 279. Kansas, New Jersey, Utah, and the Virgin Islands adopted
some of the provisions of the Uniform Rules. Carlson, supra note 5, at 13.
80. Graham, supra note 19, at 179, citing 7 CAL. L. REVISION COMM’N REP. 29, 32 (1965).
81. Id. at 291.
82. Id. at 279.
83. 7 CAL. L. REVISION COMM’N REP. 29, 33, quoted in Witkin, supra note 73, at 23.
84. Id.
85. Id.
evidence is admissible.”87 Section 911 restates this principle with respect

to privileges:
Except as otherwise provided by statute,
(a) No person has a privilege to refuse to be a witness.
(b) No person has a privilege to refuse to disclose any matter or
to refuse to produce any writing, object, or other thing.
(c) No person has a privilege that another shall not be a witness
or shall not disclose any matter or shall not produce any
writing, object, or other thing. 88
In a very real sense, the decisions embodied in these provisions expanded
the California trial judge’s power. The provisions not only freed the trial
judge from the constraints of pre-existing common-law rules that were not
codified but also deprived California appellate courts of the power to
enunciate new categorical, case-law limitations on the trial judge’s power.
Dissatisfied with the appellate development of evidence law, the
reformers not only wanted to generally expand trial judges’ power. In
addition, they wanted to confer discretionary power on trial judges to
enable them to adapt evidentiary norms to the specific facts of the case.
Consequently, the Code contains many short, one-sentence provisions
intended to grant the trial judge discretionary power, albeit not the extent
of discretion granted by the Model Code. In the words of the Commission,
“the Evidence Code is deliberately framed to permit the courts to work
out particular problems or to extend declared principles into new areas of
law. As a general rule, the code permits the courts to work toward greater
admissibility of evidence . . . .”89 Two examples—authentication and
hearsay—will suffice. For instance, § 1400 sets out the authentication
standard in a single sentence: “Authentication of a writing means . . . the
introduction of evidence sufficient to sustain a finding that it is the writing
that the proponent of the evidence claims it is . . . .”90 It is true that §§
1411-21 restate a number of traditional authentication techniques.91
However, many of those provisions consist of a single, short sentence,92
and, more importantly, the list is preceded by § 1410 reading: “Nothing
in this article shall be construed to limit the means by which a writing may
be authenticated or proved.”93 Even when the text of the Code is not as
87. CAL. EVID. CODE § 351 (West).

88. Id. at § 911.
89. Witkin, supra note 73, at § 14, at 26, quoting 7 CAL. L. REVISION COMM’N REP. 29, 34.
90. CAL.EVID. CODE § 1400 (West 2023).
91. Id. at §§ 1411-21.
92. E.g., id. at §§ 1411, 1413, 1415, 1420-21.
93. Id. at § 1410.

Vol. 6 [2023], Iss 2023
1, Art. 1
explicit as the authentication provisions, the same result can obtain when
Code provisions are read in context and in light of the legislative history.
Thus, § 1200(b) announces that “[e]xcept as provided by law, hearsay
evidence is inadmissible.”94 At first blush, this provision might seem to
deny the courts the flexibility to admit demonstrably reliable, necessary
hearsay evidence that does not fall within an enumerated exception.
However, § 160, part of the context of § 1200, reads: “‘Law’ includes . . .
decisional law.”95 In that light, the Senate Judiciary Committee’s revision
of the Comment to § 1200 states: “Under Section 1200, exceptions to the
hearsay rule may be found either in statutes or in decisional law.”96 The
bottom line is that with the exception of the privilege area, the California
drafters rejected the catalog model and moved sharply toward the code
format although not as open-textured a statutory scheme as the Model
Code of Evidence.
4. The Federal Rules of Evidence

In 1961, four years before the approval of the California Evidence
Code, Chief Justice Earl Warren appointed a Special Committee on
Evidence tasked with determining whether it was feasible and advisable
to develop uniform evidentiary rules for all federal courts. 97 After that
committee recommended the development of a uniform set of rules, in
1965, the Chief Justice appointed an advisory committee to draft proposed
rules. 98 In late 1972 the Supreme Court approved the rules and authorized
the Chief Justice to transmit the draft rules to Congress. 99
In the past, when the Court had proposed the Federal Rules of Civil
and Criminal Procedure, Congress had permitted the draft rules to take
effect without a single amendment. 100 However, in the case of the draft
Evidence Rules, Congress reacted negatively—so strongly that its initial
reaction almost doomed the entire Evidence Rules project. 101 As
previously stated, the draft Rules contained a lengthy provision on
government privilege. That provision was a focal point of controversy:
94. Id. at § 1200.

95. Id. at § 160.
96. PETER M.KACHAMA & ALBERT J MENASTER, CALIFORNIA EVIDENCE CODE
ANNOTATED 364 (Desktop ed. 2022).
97. Carlson, supra note 5, at 14.
98. Id.
99. Id.
100. Id.
101. Kenneth S. Broun, Giving Codification a Second Chance—Testimonial Privileges and the
Federal Rules of Evidence, 53 HASTINGS L.J. 769, 769 (2002).
[T]he Rules of Evidence reached Congress in the aftermath of

Watergate—a time when many of its members sought to reclaim powers
believed to have been lost by that branch to the executive and the
judicia ry. The timing was terrible; the draft Rules, including [the] broad
government privilege provision, arrived on Congress’ desk at the very
time that Congress was battling Richard Nixon in federal court over
claims of executive privilege.102
In early 1973 both houses of Congress quickly passed resolutions
blocking the implementation of the draft Rules. 103 Both houses then
proceeded to hold hearings on the draft. The House held its hearings first.
The proposed government privilege was not the only target of criticism
during the hearings; many witnesses also objected to the omission of a
general medical privilege and a spousal communications privilege.104
During the hearings, virtually every proposed privilege rule was attacked
as being overly broad, too narrow, or both overly broad in some respects
and too narrow in other respects. The denouement was that the House
Judiciary Committee voted to delete all 13 specific proposed privilege
provisions in Article V and replace them with a single Rule 501 directing
the courts to determine privilege issues based on “the principles of the
common law as they may be interpreted . . . in light of reason and
experience.”105 The House chair, Representative Hungate, was the first
witness in the subsequent Senate hearings. In essence, he warned the
Senate Committee that privilege issues were a political Pandora’s box; he
told the Senate Committee that if it was foolish enough to open up that
box, every special interest group, including “the social workers and the
piano tuners,” would demand a privilege. 106 When the dust settled, the
final legislative package approved by Congress in 1974 omitted all the
provisions of draft Article V and included only Rule 501. 107 For present
purposes, though, the point is that Congress did not reject draft Article V
on the ground of its format or drafting style. Article V was doomed by the
political reality that Congress did not perceive a national consensus on the
substantive policy choices embodied in the draft privilege rules. Thus,
while Congress rejected draft Article V, its reasons for doing so were not
at odds with the first element of the conventional wisdom that if a
102. Carlson, supra note 5, at 14.

103. Id. at 15.
104. The New Wigmore, supra note 37, at § 4.2.2.b, at 273.
105. Id. at § 4.2.2.c, at 274–75.
106. COMM. ON THE JUDICIARY, 93D CONG., RULES OF EVIDENCE 3, 6 (Comm. Print 1974).
107. The New Wigmore, supra note 37, at § 4.2.2.f, at 284–85.

Vol. 6 [2023], Iss 2023
1, Art. 1
privilege rule is to be codified, it ought to be set out in detailed, catalog

fashion.
Moreover, some commentators have observed that the final wording
of the Federal Rules provisions in other doctrinal areas represents a
triumph for the second element of the conventional wisdom that trial
judges’ discretion should be expanded108 and that the wording of the
provisions relating to those areas ought to be broad enough to support that
discretion. Thus, the Federal Rules fit into a mold similar to that of the
California Evidence Code. That should come as no surprise, since the
timing allowed the Advisory Committee to consider the Code provisions
that had recently been enacted. The Advisory Committee Notes to many
Federal Rule of Evidence provisions expressly cite a Code provision as a
drafting model. 109 The final version of the Federal Rules is replete with
illustrations of that triumph. Like Evidence Code § 351, Federal Rule 402
purports to mandate the admission of all relevant evidence unless the
Constitution, a federal statute, a provision in the Rules, or another rule
prescribed by the Supreme Court is to the contrary. 110 In general, the
Supreme Court has construed Rule 402 as impliedly abolishing uncodified
exclusionary rules and depriving the courts of the power to enunciate new
categorical exclusionary rules. 111 As in the case of the Evidence Code, the
net effect is to increase the trial judge’s power to admit relevant evidence.
Many specific Federal Rule provisions parallel the Code Evidence
and also reflect the code model. Like Evidence Code § 1400, Rule 901(a)
prescribes a general standard for authentication: “To satisfy the
requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.”112 Like Evidence Code §§ 1411-
21, Rules 901(b)(1)-(10) list several satisfactory authentication
foundations, 113 and like Code § 1410, the introductory language in Rule
901(b) expressly states that the listed foundations are “examples only—
not a complete list—of evidence that satisfies the [authentication]
108. Witkin, supra note 73, at § 5, at 12.

109. See, e.g., the express references to California Evidence Code provisions in the Advisory
Committee Notes to Fed. R. Evid. 102, 104–05, 201, 403–04, 406–09, 411, 605–07, 609–10, 613,
615, 701, 703–06, 801, 803–04, 806, and 901–02.
110. FED. R. EVID. 402.
111. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (the enactment of the Federal
Rules impliedly abolished the traditional, general acceptance standard for the admission of scientific
testimony).
112. FED. R. EVID. 901(a).
113. Id. at 901(b)(1)–(10).
requirement.”114 While the Evidence Code implicitly recognizes a

residual hearsay exception once § 1200 is construed in the context of §
160, the current version of Federal Rule 807 explicitly allows the trial
judge to admit hearsay that does not fall within a statutorily enumerated
exception if, in his or her discretion, the judge finds that
1. the statement is supported by sufficient guarantees of
trustworthiness—after considering the totality of
circumstances under which it was made and evidence, if any,
corroborating the statement; and
2. it is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through
reasonable efforts. 115
Some provisions, such as Federal Rules of Evidence 403, 412, and
609, give the judge the discretionary power to exclude relevant evidence
balancing probative value against countervailing probative dangers.116
Rule 403 is the leading example, authorizing the judge to weigh
“probative value” against the probative dangers of “unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence”117—language that brings to
mind Justice Scalia’s caution about the difficulty of determining “whether
a line is longer than a rock is heavy.”118 Admittedly, Rule 403 does not
expressly mention “discretion.” However, the nature of the balancing
process is inherently discretionary since it is impossible to quantify or
estimate these incommensurable factors on the same scale. 119
The code model also underlies the provisions embodying rules of
limited admissibility, such as Rules 404 and 407-09. These provisions bar
the admission of particular types of evidence for certain purposes but
empower the judge to determine that the specific facts of the case support
an alternative, permissible use of the evidence. 120 These provisions
announce an exclusionary rule but give the trial judge the flexibility to
determine that on the specific facts of the case the exclusionary rule does
114. Id. at 901(b).

115. Id. at 807(a).
116. Id. at 403, 412, and 609.
117. Id. at 403.
118. Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988).
119. United States v. Coleman, 930 F.2d 560, 563 (7th Cir. 1991); United States v. Glecier, 923
F.2d 496, 503 (7th Cir. 1991).
120. FED. R. EVID. 404, 407–09, 28 U.S.C.A. Of course, on request, the trial judge must give the
jury a limiting instruction. Id. at FED. R. EVID. 105. The negative prong of the instruction should
identify the forbidden purpose while an affirmative prong ought to describe the permissible use of the
evidence for the jury.

Vol. 6 [2023], Iss 2023
1, Art. 1
not foreclose the particular theory of logical relevance that the proponent
has advanced. In all these cases, true to the code model, the wording of
the Federal Rule is broad enough to expressly or implicitly confer
discretion on the trial judge. These grants of discretion are generally more
circumscribed than those in the Model Code, but the basic drafting format
is a code, not a creed or a catalog.
III. A CRITICAL EVALUATION OF THE CONVENTIONAL WISDOM: THE

DEVELOPMENTS THAT RAISE GRAVE QUESTIONS ABOUT BOTH PARTS OF
THE RECEIVED ORTHODOXY
Part I describes the two-part conventional wisdom as to the manner

in which reformers should draft evidence legislation and rules. One
component is the proposition that because laypersons need to know
whether they can safely confide in persons such as attorneys and
therapists, privilege legislation and rules ought to follow a catalog format;
the wording should be so detailed that at the very time he or she has to
decide whether to consult and confide, the layperson can confidently
predict whether their revelation will later receive privilege protection in
court. The second component is the proposition that statutes and rules
describing other evidentiary rules should be phrased more broadly. In
other doctrinal areas of evidence law, following the code model, the
wording ought to state flexible principles and give trial judges discretion
to do justice by adapting the principle to the particular facts of the specific
case. Part II undertakes a critical evaluation of both propositions.
A. The Doctrinal Area of Privileges

Concededly, Wigmore was correct in thinking that privilege
legislation and rules should be phrased in a highly detailed fashion if
laypersons are so concerned about subsequent compelled disclosure of the
revelations that they will not consult or confide without the assurance of
an absolute privilege. The need for such wording follows as a corollary of
Wigmore’s premise about the typical layperson’s frame of mind. The
crucial question, though, is whether that assumption about the layperson’s
state of mind is warranted. There is a long tradition of using available
psychological research to critique the assumptions underlying traditional
evidentiary norms. 121 We shall now consider some of the pertinent
121. Michael Saks & Barbara Spellman, The Psychological Foundations of Evidence Law
(2016); Graham, supra note 19, at 286; I. Daniel Stewart, Perception, Memory, and Hearsay: A
Criticism of Present Law and the Proposed Federal Rules of Evidence, 1970 UTAH L.REV. 1; Robert
research and review some of the common sense doubts raised about
Wigmore’s instrumental paradigm for privileges.
In the case of privileges, quite apart from the relevant empirical
research, there are reasons to be skeptical about Wigmore’s premise. As
Professor Edward Cleary, the Reporter for the original Federal Rules
Advisory Committee observed, it is ridiculous to think that a patient
would withhold necessary information from a physician if the patient
thought that he or she were suffering from a life-threatening disease; if the
patient believes that “life itself [is] in jeopardy,” any rational patient will
disclose even absent a privilege. 122 In 2019, the New Mexico Supreme
Court prospectively abolished the spousal communications privilege in
that jurisdiction. 123 In rejecting an instrumental justification for the
privilege, the court opined that many spouses are probably unaware of the
existence of the privilege and that, in any event, it is unrealistic to assume
that they rely on the privilege in the vast majority of their interactions. 124
During the Congressional hearings on the then-proposed Federal Rules,
Professor J Francis Paschal of Duke University stated that perhaps the
majority of attorney-client communications occur “pre-litigation.”125 In a
classic English case on legal professional privilege, Lord Scott bluntly
stated:
It is obviously true that in very many cases clients would have no
inhibitions in providing their lawyers with all the facts and information
the lawyers might need whether or not there were the absolute assurance
of non-disclosure that the present law of privilege provides.126
There are not only common-sense doubts about the validity of the
essential premise of the instrumental paradigm; there are also empirical
M. Hutchins & Donald Slesinger, Some Observations on the Law of Evidence—Memory, 41

HARV.L.REV. 860 (1928).
122. Fed. Rules of Evidence: Hearings on H.R. 5463 Before the Special Subcomm. on Reform of
Fed. Crim. L. of the S. Comm. on the Judiciary, 93d Cong. 556 (1973). See also P. K. Waight & C.R.
Williams, Evidence Commentary and Materials 246 (5th ed. 1998) (“The Statute Law Revision
Commission in Victoria [Australia found that there was not even] . . . a tittle of evidence to support a
somewhat loosely held belief that patients withheld information from their physicians” due to a lack
of a medical privilege).
123. People v. Gutierrez, 482 P.3d 700 (N.M. 2019), clarified, 2021-NMSC-008 (N.M. Nov. 5,
2020).
124. Id. The court later reinstated the privilege to allow the bar and public to provide input to the
decision whether to abolish the privilege.
125. Fed. Rules of Evidence: Hearings on H.R. 5463 Before the Special Subcomm. on Reform of
Fed. Crim. L. of the S. Comm. on the Judiciary, 93d Cong. 88–89 (1973).
126. PJSC Tatneft v. Bogolyuboy, (2020) EWHC 2437 (Comm.) (Eng) (Mrs. Justice Mounder),
quoting Lord Scott in Three Rivers (No. 6) [2005] I AC 610.

Vol. 6 [2023], Iss 2023
1, Art. 1
studies that challenge that premise. Some studies relate to the attorney-
client privilege.
The pioneering research was reported in Yale Law Journal in the
early 1960s. 127 The researchers surveyed several groups, including
laypersons, lawyers, and judges. Question no. 6 asked the respondent
laypersons whether the absence of a privilege would make them less likely
to make free, complete disclosure to an attorney. Roughly half answered
in the affirmative. 128 However, the survey instrument did not inquire
further whether the absence of a privilege would have a major, moderate,
or minimal impact on their willingness. Moreover, when asked directly
whether there should be a legal privilege, perhaps surprisingly, fewer than
half answered in the affirmative. 129 The laypersons’ response to question
no. 8 was particularly revealing. Only a third believed that the privilege
allowed an attorney “to refuse to reveal the client’s confidences whenever
ordered to do so by a judge.”130 In other words, most lay respondents were
willing to confide in attorneys even though they mistakenly believed that
any judge could override any privilege.
Professor Fred Zacharias conducted the second study in the late
1980s. 131 He undertook the study in part because the earlier Yale study
called into question the conventional wisdom about the need for an
absolute legal privilege. The Yale study and his research in Tompkins
County, New York convinced him that “strict” privilege rules are
inessential. 132 He asked respondents whether they would still withhold
information if the lawyer promised confidentiality except for specific
types of information specified in advance; in response, only 15.1% stated
that they would withhold. 133 Moreover, the survey responses indicated
that laypersons are willing to confide even though they mistakenly think
that privilege is much narrower than it is and subject to many exceptions.
By way of example, in a series of 12 hypotheticals involving allegations
such as fraud in the sale of a house, 40-60% of the respondents believed
that the attorney could disclose relevant communications without the
client’s consent. 134 Most respondents not only erroneously assumed that
the privilege is riddled with exceptions; fewer than a quarter of the
127. Comment, Functional Overlap Between the Lawyer and Other Professionals: Its
Implications for the Privilege Communications Doctrine, 71 YALE L.J. 1226 (1962).
128. Id. at 1262.
129. Id.
130. Id.
131. Fred Zacharias, Rethinking Confidentiality, 74 IOWA L.REV. 351 (1989).
132. Id. at 382.
133. Id. at 386.
134. Id. at 394.
respondents indicated that expanding the exceptions “would cause them

to be less willing to consult an attorney.”135
Professor Vincent Alexander was the lead investigator in the third
major study. 136 Professor Alexander contacted corporate executives, in-
house counsel, other corporate attorneys, and judges headquartered in
Manhattan. To be sure, some of Professor Alexander’s findings cut in
favor of sustaining a broad legal privilege. For instance, “a solid majority”
of the lawyers stated that in “their experience,” the existence of the
privilege encouraged candor on the part of corporate executives.137
Furthermore, three out of four high-ranking executives shared that
belief. 138 They added that they tended to be more cautious when the
subject of the communication was a litigated matter. 139
Yet, on balance, Professor Alexander concluded that the findings in
his study were at odds with “the broad scope” that the privilege presently
enjoys. 140 The executives’ responses indicated that in their interactions
with counsel, they relied more heavily on their personal trust in the
attorney rather than any assumption about evidence law141 — a finding
similar to the New Mexico Supreme Court’s observation about spouses’
interactions. The executives added that even if the privilege were
abolished or curtailed, they would continue to consult attorneys they had
found to be trustworthy. 142 The privilege modification would have little
effect on the frequency of consultation. 143 The executives’ oral
communications with counsel would continue to be relatively candid,144
but the executives might be more circumspect in written
communication. 145 These results impressed Professor Alexander because
corporate executives are sophisticated businesspersons with above
average familiarity with the law, consultation is easy because in-house
counsel are virtually “omnipresent,”146 and executives do not incur any
personal expense for the consultation. These results convinced Professor
Alexander not only that the scope of the privilege is seriously over-
135. Id. at 395.

136. Vincent C. Alexander, The Corporate Attorney-Client Privilege: A Study of the
Participants, 63 ST. JOHN’S L.REV. 191 (1989).
137. Id. at 261.
138. Id. at 246, 261.
139. Id. at 264.
140. Id. at 200.
141. Id. at 248
142. Id. at 225, 263.
143. Id. at 248, 269–70.
144. Id. at 264.
145. Id. at 263–64, 370–71, 374.
146. Id. at 273.

Vol. 6 [2023], Iss 2023
1, Art. 1
inclusive147 but also that there is a dubious case for an absolute

privilege, 148 especially in transactional work.
Other studies relate to the psychotherapy privilege. In its 1996 Jaffee
decision recognizing a psychotherapy privilege, the Supreme asserted that
“studies and authorities” establish the need for a privilege. 149 However,
on close examination the publications cited by the majority are much less
impressive than the majority made them out to be. Some studies survey
therapists without bothering to question subjects150 while in other studies
the wording of the survey question was deficient because it failed to
specify whether the question relates to court-ordered disclosure.151 In
other cases, the findings lend little support to the need for an absolute
privilege. One pertinent research project was the Miller-Thelen study.152
That study found that the “level of confidentiality has little effect on client
behavior.”153 In a study led by Donald Schmid, only 33% of the
respondents indicated that they would be upset by a court-ordered
disclosure. 154 In another project, the researchers reported that prospective
patients do “not [even] consider the issue of confidentiality unless
specifically warned that it might be absent.”155 When asked about their
concern about the risk of unauthorized release of information to state
agencies, patients responded that they “would not be deterred from
seeking care by a threat (admittedly mild) to confidentiality.”156 In a New
Jersey study, only 22% “of the patients reported that they had held back
from seeking psychotherapy because of a fear of disclosure.”157 Although
most of the studies were conducted in the United States, there is also
pertinent Canadian research. In one Canadian study, “[o]nly seventeen
percent” of the respondents replied that they “rely most strongly on
privilege” law in deciding whether to disclose to their therapists. 158 After
147. Id. at 267.

148. Id. at 368, 384.
149. Id. at 10 n.9.
150. The New Wigmore, supra note 37, at § 5.2.2.a, at 405.
151. Id.
152. David Miller & Mark Thelen, Knowledge and Beliefs about Confidentiality in
Psychotherapy, 17 J. PROF. PSYCHOL. RES. & PRACT.15 (1986).
153. Id.
154. Donald Schmid, Paul S. Applebaum, Loren H. Roth & Charles Lidz, Confidentiality in
Psychiatry: A Study of the Patient’s View, 34 HOST. & CMTY. PSYCHIATRY 353 (Apr. 1983).
155. Paul S. Applebaum, Gilead Kapen, Bruce Walters, Charles Lidz & Loren Roth,
Confidentiality: An Empirical Test of the Utilitarian Perspective, 12 BULL. AM. ACAD. PSYCHIATRY
& L. 109, 110 (1984).
156. Id. at 111.
157. Id.
158. Daniel W. Shuman, Myron F. Weiner & Gilbert Pinard, The Privilege Study (Part III):
Psychotherapist-Patient Communications in Canada, 9 Int’l J. L. & Psychiatry 393, 407 (1986).
surveying the empirical data compiled in the studies, one group of

commentators concluded “that the evidence for the proposition that a
psychotherapist-patient privilege is necessary for effective psychotherapy
is highly questionable.”159 The strongest inference supported by the data
is that “people do not look to [evidence] law for guidance in their decision
to enter into therapy or make disclosures in therapy.”160
The point is not that privileges should be abolished. Rather, the point
is that the instrumental case for broad, absolute privileges has been
overstated. Whether the layperson is a spouse, client, or patient, the data
simply do not support the generalization that the layperson would not
consult or confide without the assurance provided by an absolute privilege
set out in detailed, catalog fashion. Part I pointed out that the California
drafters worded their privilege statutes in that fashion and that the drafters
of proposed Article V of the Federal Rules were obviously inclined to
favor the same format. However, once common sense is brought to bear
and the relevant empirical studies are considered, the case for a catalog
approach is weaker than the conventional wisdom assumes. Bright-line,
detailed statutes and rules would be needed if the instrumental model were
valid and the average layperson would not consult or confide without the
protection furnished by an absolute privilege cast in the catalog mold;
without the benefit of such privileges, the typical layperson supposedly
would not consult and confide. However, as we have seen, that
supposition is more than suspect; and the need for a catalog approach to
drafting privilege statutes and rules is, therefore, significantly weaker.
B. Other Doctrinal Areas in Evidence Law

One component of the conventional wisdom has been the belief that
privilege statutes and rules ought to follow catalog format and be detailed
and bright line. The other component has been the view that the provisions
for other doctrinal areas in Evidence should be written in code style; when
possible, those provisions should be drafted in broader, more flexible
language to grant the trial judge discretion to make a ruling that serves the
interests of justice defined by the specific facts of the case. This
component prioritizes the use of these evidence statutes and rules at trial.
The objection to this approach to drafting statutes and rules in the
other doctrinal areas of Evidence law is that looser 161 wording increases
the difficulty of settling cases short of trial. The more broadly the
159. Id. at 417.

160. Id. at 418.
161. Witkin, supra note 73, at § 2, at 10.

Vol. 6 [2023], Iss 2023
1, Art. 1
provisions are worded and the more discretion the trial judge enjoys, the
harder it is for the attorney to predict the evidentiary rulings at a
subsequent trial; and the more difficult it consequently is for the attorney
to assess the settlement value of his or her case. That objection has never
been more potent than it is today.
The pretrial phase, notably pretrial discovery, has become “the center
of gravity” in modern litigation. 162 Trial is no longer the name of the
litigation game. 163 One commentator was guilty of only slight hyperbole
when he wrote that, especially in civil cases, trials are “approaching
extinction.”164 Marc Galanter has referred to “the Vanishing Trial,”165 and
Professor Robert Burns has gone so far as to proclaim “the Death of the
American Trial.”166 The numbers bear out that proclamation. In 1938,
roughly 20% of the cases filed in federal court led to a trial. 167 By 1962,
that percentage had fallen to 12%. 168 By 2009, even considering both jury
and bench trials, the percentage had plummeted to a bit more than 1%.169
Statistics for state courts indicate that by 2003, the percentage of filed
cases culminating in trial had fallen to less than 3%. 170 Moreover, these
statistics relate to filed actions, and many civil disputes are settled before
suit is ever filed. One commentator was probably close to the mark when
he wrote that at least 97% of the cases that come through attorneys’ offices
settle without a single day of trial. 171 There has been a similar decline in
criminal trials. 172 Approximately 96% of arrestees who are booked plead
162. John W. Cooley, Puncturing Three Myths About Litigation, 70 A.B.A.J. 75, 76 (1984). See
also Edward Imwinkelried, The Need for Truly Systemic Analysis for the Reform of Both Pretrial
Practice and Evidentiary Rules: The Role of the Law of Unintended Consequences in “Litigation”
Reform, 32 REV. LITIGATION 201 (2013).
163. Rebecca Love Kourlis, Overhaul Civil Litigation, NAT’L L.J., Oct. 31, 2011, at 51.
164. Robert Burns, What Will We Lose If the Trial Vanishes?, 37 OHIO N. UNIV. L. REV. 575
(2011); Charles Maher, Discovery Abuse, 4 CAL. LAW. 44, 45 (1984) (quoting Professor Geoffrey
Hazard, Jr. as stating that “‘[i[n big litigation today, pre-trial is the trial”).
165. Marc Galantner, The Vanishing Trial: An Examination of Trials and Related Matters in
Federal and State Courts, 1 J. EMP. LEGAL STUD. 459, 460 (2004). See also P.L. Refo, The Vanishing
Trial, 30 LITIGATION, Wint. 2004, at 1, 2 (the A.B.A. Litigation Section concluded a project entitled
“The Vanishing Trial”; the project leaders were Dean JoAnne Epps of Temple University, Professor
Steve Landsman of Depaul University, and Professor Bob Sayler of the University of Virginia; the
project collected data from both federal and state courts); Leigh Jones, Coping with Dearth of Jury
Trials, NAT’L L.J., Aug. 16, 2004, at 4 (the article discusses “The Vanishing Trial”).
166. Robert P. Burns, The Death of the American Trial, NW. FAC. WORKING PAPERS (2009).
167. Burns, supra note 164.
168. Id.
169. Id.
170. Steven Lubet, Showing Your Hand: A Counter-Intuitive Strategy for Deposition Defense,
29 LITIGATION, Wint. 2003, at 38.
171. Joseph Kelner, Settlement Techniques—Part One, TRIAL, Feb. 1980, at 46.
172. Refo, supra note 165.
guilty. 173 In 2012 in Lafler v. Cooper, 174 the Supreme Court remarked that
“criminal justice today is for the most part a system of pleas, not a system
of trials.”
Even with our thousands of courtrooms, judges, and attorneys, this
relatively small number of trials strains our judicial system:175
Existing court calendar backlogs and prosecutors’ and public defenders’
caseloads make the social costs of an even larger number of trials
unacceptable, especially in view of the longer delays in civil dockets that
would also inevitably result.176
The Federal Rules already contain provisions calculated to encourage
pretrial civil disposition by settlement and pretrial criminal disposition by
plea: Rule 408 (compromise offers and negotiations) 177 and Rule 410
(pleas, plea discussions, and related statements). 178 However, the majority
of jurisdictions have concluded that even those provisions do not go far
enough in encouraging disposition without trial and removing
disincentives to pretrial settlement. In order to promote alternative dispute
resolution (ADR) mechanisms, many jurisdictions have adopted statutes
or court rules creating privileges for mediation proceedings179 and
conciliation. 180 Some have gone so far as to create full-fledged privileges
for settlement statements. 181 Rule 408 is a rule of limited admissibility;
while Rule 408(a) prohibits the use of compromise statements “to prove
or disprove the validity or amount of a disputed claim,”182 in the next
breath, Rule 408(b) allows the proponent to rely on alternative theories of
admissibility “such as proving a witness’s bias or prejudice ”183 In
sharp contrast, the jurisdictions that have created true settlement
privileges bar any use of the privileged statements. 184
Of course, we must avoid exaggeration. Even with the currently
worded statutes and rules dealing with evidentiary doctrines other than
privilege, the system succeeds in settling the overwhelming majority of
173. George Beall, Negotiating the Disposition of Criminal Charges, TRIAL, Oct. 1980, at 46.
174. Lafler v. Cooper, 566 U.S. 156, 170 (2012).
175. U.S. DEP’T OF JUST., REPORT OF THE FEDERAL COURTS STUDY C OMMITTEE, at 4–10 (Apr.
2, 1990).
176. James Douglas Welch, Settling Criminal Cases, 6 LITIGATION 1, Fall 1979, at 32.
177. FED. R. EVID. 408.
178. FED. R. EVID. 410.
179. THE NEW WIGMORE, supra note 37, at § 1.3.12.a.
180. Id. § 1.3.12.c.
181. Id. § 1.3.12.b.
182. FED. R. EVID. 408(a).
183. FED. R. EVID. 408(b).
184. THE NEW WIGMORE, supra note 37, at § 1.3.12.b.

Vol. 6 [2023], Iss 2023
1, Art. 1
cases. Moreover, sometimes the uncertain wording of an evidentiary

privilege can encourage settlement; if the stakes are great and the
uncertainty relates to a pivotal item of evidence in the case, the uncertainty
can have an in terrorem effect, pressuring the parties to settle. 185 However,
on balance, there is a solid consensus that society should strongly
encourage pretrial disposition of cases.
A tool should be suitable for its intended use. Evidence statutes and
rules are tools of the litigation system. As we have seen, in the
macrocosm, those tools are rarely used as the basis for evidentiary rulings
at trial. Instead, in perhaps 95% or 97% of the cases, 186 those tools are
employed as a basis for the pretrial evaluation of the settlement value of
cases with a view to disposition without trial. If that is the predominant
actual use of evidentiary statutes and rules, those provisions should be
worded to facilitate settlement. In 1965, the California Law Revision
Commission was correct in calling for an evidence bible that would be
useful to “busy” lawyers. 187 However, in 2022, most of those lawyers are
not busy trying cases; rather, they are busy settling cases. In the run-of-
the-mill case, it complicates the task of those lawyers when a broadly
worded evidence statute or rule makes it challenging to forecast a trial
evidence ruling. If the provision is worded too loosely, there is less
probability that the two sides’ assessment of the case’s settlement value
will roughly coincide and, hence, less probability of settlement.
Part II.A argues that the case for bright line privilege statutes and
rules is weaker than the conventional wisdom makes it out to be. Socially
desirable interactions such as consultations between laypersons and their
attorneys and therapists are likely to occur and be productive even if the
consultations are not conducted against the backdrop of detailed privilege
statutes and rules drafted in a catalog format. Part II.B contends that,
likewise, the case for loosely worded statutes and rules governing other
doctrinal areas in evidence is weaker than the received orthodoxy
assumes. It is true that such phrasing grants the judge discretion and
flexibility to make trial evidentiary rulings that increase the likelihood that
justice will be served on the particular facts of the instant case. However,
evidence statutes and rules are rarely used in the trial setting. Well over
185. .EDWARD IMWINKELRIED & THEODORE BLUMOFF, PRETRIAL DISCOVERY: STRATEGY AND
TACTICS (2021-2022 ed. 2021). (Before entering teaching, Blumoff, practiced with a large litigation
firm. On several occasions he told me that his firm sometimes found itself in this situation: The firm
has a case involving a huge amount of money, and there was uncertainty about a pivotal trial
evidentiary ruling. The firm sometimes advised its client to settle rather than gambling on a favorable
ruling at trial.)
186. Balabanian, supra note 17, at 14.
187. 7 CAL. L. REVISION COMM’N REPS. 34 (1965).
nine-tenths—probably something in excess of 95% 188—of the cases never

find their way to trial, and it is in society’s systemic interest to maintain
and perhaps increase that percentage. That interest is better served by
tightening the wording of evidence provisions and making it easier for
attorneys to gauge the settlement value of their cases.
IV. THE IMPLICATIONS OF THE WEAKNESSES OF THE CONVENTIONAL

WISDOM: THE DESIRABILITY OF CONVERGENCE
Part I described the conventional wisdom that while statutes and

rules governing privileges should be drafted in a detailed fashion to
prescribe bright-line rules, provisions governing other doctrinal areas in
evidence ought to be written in a broad fashion, giving trial judges
discretion to tailor evidentiary rulings to do justice on the particular facts
of the specific case. Part II explained why both components of the
conventional wisdom are now suspect. The norm for privilege provisions
has been undermined by growing evidence that the typical layperson is
not as concerned about subsequent judicial disclosure as Wigmore’s
instrumental theory supposes. In the average situation, the layperson has
less need for exquisitely detailed rules that would permit him or her to
predict with a high degree of confidence whether a court will later shield
their disclosure. Likewise, the norm for other doctrinal areas has been
undermined by the reality that, in most cases, those provisions are not used
as the basis for rulings at trial. Rather, in the huge majority of cases, there
will never be a trial; and the rules are used pretrial to help attorneys assess
the settlement value of their cases. In that setting, broad language and
flexible provisions can be an impediment to settlement. Given the analysis
in Part II, both norms need to be revisited; and the result could be a limited
convergence of the two norms.
A. Broadening the Wording of the Provisions Governing Privileges

Although common sense doubts and empirical research call into
question the instrumental model, it does not follow that there should be a
wholesale loosening of the language of privilege provisions. To a degree,
the doubts about the instrumental model weaken the case for highly
detailed privilege provisions. However, it would be a mistake to leap to
the conclusion that the wording of these provisions should be loosened to
the extent of provisions such as Federal Rules of Evidence 403 on
discretionary balancing and Rule 807 on the residual hearsay exception.
188. Balabanian, supra note 17.

Vol. 6 [2023], Iss 2023
1, Art. 1
Although the original justification for a catalog approach to privilege

provisions is now questionable, there is a second reason for maintaining
that approach. As Part II.B demonstrated, the overwhelming majority of
cases that enter attorneys’ offices settle short of trial. To reach a
settlement, the two sides must reach some general agreement about the
case’s settlement value. They need not arrive at exactly the same figure,
but the two sides’ assessment must be “in the same ball park.” The
availability of detailed rules to both sides increases the probability that the
sides will come to similar assessments. In a given case, that assessment
could turn on a privilege issue. In an adversary system such as ours,
admissions of a party opponent are one of the most powerful types of
evidence. Louis Nizer, one of the legendary trial attorneys of the 20th
century, was famous for stating during closing argument that he had
proven his case “out of the mouths of our very adversaries.”189 The party-
opponent might claim that their allegedly damning admission is protected
by the attorney-client, medical, or psychotherapist privilege.
In short, although the original rationale for taking a catalog approach
to privilege statutes and rules is now questionable, there is still good
reason to word these privileges in a detailed fashion. Thus, even if
jurisdictions rethink the validity of Wigmore’s instrumental theory, they
might well decide to make few, if any changes to the manner of the
wording of privilege statutes and rules.
B. Tightening the Wording of Provisions Governing Other Doctrinal

Areas in Evidence Law
If there is to be a convergence, it will result not so much from the
broadening of the wording of privilege provisions but rather from a
tightening of the wording of provisions controlling other doctrinal areas
in Evidence. One promising possibility is the formal approval of
additional specific provisions on emerging alternative theories of logical
relevance that satisfy rules of limited admissibility.
Consider one of the premier rules, namely, Rule 404(b) governing
the admission of a person’s uncharged misconduct. In pertinent part, Rule
404(b) reads:
(b) Other Crimes, Wrongs, or Acts.
189. Lane Goldenstein, The Cardinal Principles of Cross-Examination, in TRIAL LAWYER’S

GUIDE 332, 338 (I. Goldstein ed., 1959); G. Christopher Ritter, The 10 Reasons for Cross-
Examination, THE CHAMPION, May 2014, at 2, 23 (“That information carries extra weight because it
came from someone who had . . . no reason to help the opposing side”).
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is

not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. 190
This type of evidence can be so impactful that alleged errors in the
admission of such evidence are the most frequently litigated issue on
appeal. 191 In some states, errors in the admission of such evidence are the
most common ground for reversal on appeal. 192 Although most of these
appeals are in criminal cases, uncharged misconduct can also have a major
impact in civil cases. For example, one study found that if a civil plaintiff
succeeds in introducing evidence that the defendant has a criminal
conviction, the plaintiff can expect a damages award 9% higher than
normal. 193
Rule 404(b)(2) lists several traditional theories for admitting
uncharged misconduct for noncharacter purposes, but the list is preceded
by the two words “such as.”194 Every federal circuit court of appeals has
held that because of those two words, Rule 404(b) codifies a flexible,
inclusionary conception of the doctrine; that is, the proponent may
introduce such evidence for any purpose other than the use expressly
forbidden by Rule 404(b)(1), and the proponent need not pigeon hole his
or her exception into one of the traditional theories mentioned in (b)(2).195
Forty-four states have adopted evidence codes or rules patterned after the
Federal Rules. 196 In most states, the wording of the pertinent provision is
190. FED. R. EVID. 404(b).

191. Daniel Capra & Liesa Richter, Character Assassination: Amending Federal Rule of
Evidence 404(B) to Protect Criminal Defendants, 118 COLUM. L. REV. 769, 771 (2018); Comment,
They Did It Before, They Must Have Done It Again, the Seventh Circuit’s Propensity to Use a New
Analysis of Rule 404(b) Evidence, 65 DEPAUL L.REV. 1055, 1058, 1074 (2016); Thomas Reed,
Admitting the Accused’s Criminal History: The Trouble with Rule 404(b), 78 TEMP. L. REV. 201, 212
(2005); Crane McClennen, Admission of Evidence of Other Crimes, Wrongs, or Acts Under Rule
404(b)—It’s Time to Start Following the Rules, ARIZ. ATTORNEY, June 1990, at 13.
192. Patrick Wallendorf, Note, Evidence—The Emotional Propensity Exception, 1978 ARIZ. ST.
L.J. 153, 156 (1978).
193. David Herbert & Roger Barrett, Attorney’s Master Guide to Courtroom Psychology 321
(1980).
194. FED. R. EVID. 404(b).
195. 1 EDWARD IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE § 2:38, at 351–57 (2022
ed. 2021).
196. CARLSON, supra note 5, at 16.

Vol. 6 [2023], Iss 2023
1, Art. 1
identical or virtually identical to that of the Federal Rule. 197 It is therefore

no surprise that the clear trend in the state courts is also toward the
inclusionary view. 198
The inclusionary construction of Rule 404(b) and its state analogs
gives the proponent an incentive to proffer such evidence on novel,
assertedly non-character theories. In practice, though, courts are
sometimes reluctant to endorse such theories because they realize the high
reversal rate for errors in admitting uncharged misconduct. 199 One novel
theory is the so-called doctrine of objective chances. 200 In the United
States, the landmark, pre-Federal Rules decision on point is United States
v. Woods. 201 In that case, the defendant was charged with infanticide. The
deceased child had died of cyanosis, and the defendant claimed that the
death was accidental. Over objection, the trial judge admitted prosecution
evidence that during a 25-year period, 9 other children in the defendant’s
custody had experienced at least 20 cyanotic episodes. The defense
contended that the evidence was logically relevant to show only the
defendant’s personal, subjective bad character. However, both the trial
and appellate courts concluded that cumulatively, the incidents
established an extraordinary coincidence—exceeding the baseline
frequency for average, innocent persons—which was logically relevant as
some evidence of an actus reus. The courts concluded that that theory did
not necessitate any verboten assumption about the defendant’s subjective
character.
There is a longstanding dispute over whether the doctrine of
objective chances is a legitimate noncharacter theory of logical relevance
satisfying Rule 404(b). 202 Some courts have liberally admitted uncharged
misconduct evidence under the doctrine not only to prove actus reus, as in
Woods, and mens rea203 but also to negate a defendant’s claim that the
197. 2 EDWARD. IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE App. I (2022 ed. 2021).
198. 1 IMWINKELRIED, supra note 195, § 2:38, at 357-58.
199. See supra note 192 and accompanying text.
200. .Edward Imwinkelried, A Brief Essay Defending the Doctrine of Chances as a Valid Theory
for Introducing Evidence of an Accused’s Uncharged Misconduct, 50 N.M. L. Rev. 1 (2020).
201. United States v. Woods, 484 F.2d 127 (4th Cir. 1973), cert..denied, 415 U.S. 979 (1974).
202. 1 IMWINKELRIED, supra note 195, § 4:1.
203. Suppose that a defendant is lawfully stopped and the police find illegal drugs secreted in
the automobile that the defendant is driving. Analogizing to Woods, a prosecutor can argue that the
trial judge should admit evidence that on two other occasions when the defendant was stopped, illegal
drugs were found in the defendant’s car. Again, the thrust of the argument is that it would be an
extraordinary coincidence for an innocent person to be found driving a car containing contraban d
drugs so many times. The objective improbability of that coincidence would furnish some evidence
of mens rea.
alleged victim has fabricated the charge. 204 Several courts have asserted
that “most” jurisdictions now embrace the doctrine. 205 Yet, while not
repudiating the doctrine, other courts have found error in admitting
uncharged misconduct evidence under the doctrine when the defendant
did not expressly claim accident. 206 Even if a trial judge would otherwise
be inclined to rely on the doctrine as a basis for admitting uncharged
misconduct evidence, the uncertain, conflicting appellate guidance and
the risk of reversal can give a trial judge pause before doing so. Likewise,
that uncertainty might make litigants reluctant to enter into a disposition
agreement when uncharged misconduct evidence is crucial, but the state
of the 404(b) jurisprudence in the jurisdiction is unclear. Of course, a
motion in limine is a possibility, but in most instances, the trial judge has
discretion whether to reach the merits of the motion before trial,207 and at
trial, the judge has the power to change the in limine ruling even absent a
request by a party. 208 Without abandoning the flexibility of the language
“such as,” a drafter can remove the uncertainty by proposing an
amendment endorsing a sound, novel theory or at least indicating approval
in an accompanying Note or Comment. Doing so would clear the way for
both sides to make a more informed decision on whether to enter into a
settlement or plea agreement to obviate the need for trial.
Like the area of uncharged misconduct, the doctrinal area of
authentication illustrates the utility of tightening the wording of
provisions relating to doctrinal areas other than privilege. Just as many
rules of admissibility, such as Rule 404(b), do not limit the proponent to
approved theories expressly mentioned in the Rule, Rule 901 does not
restrict the proponent to the traditionally accepted foundations. Again,
Rule 901(a) announces the general standard for authentication, Rules
901(b)(1)-(10) enumerates several acceptable foundations, but the
introductory language in 901(b) expressly states that the enumerated
foundations “are examples only—not a complete list ”209 On the one
204. Edward Imwinkelried, The Evidentiary Issue Crystallized by the Cosby and Weinstein
Scandals: The Propriety of Admitting Testimony About an Accused’s Uncharged Misconduct Under
the Doctrine of Objective Chances, 48 SW. L. REV. 1 (2019).
205. Miller v. Baldwin, 723 Fed. Appx. 408, 411 n. 5 (9th Cir. 2018), cert.denied, 138 S.Ct.
2000 (2018); State v. Atkins, 304 Ga. 413 (2018).
206. Edward Imwinkelried, Admitting Evidence of an Accused’s Uncharged Misconduct Under
the Doctrine of Chances: Before a Judge May Consider Evidence of an Uncharged Incident to Decide
Whether There Has Been a Suspicious Coincidence, Must the Accused Claim That the Incident Was
an Accident?, 99 DENV. L. REV. 1 (2021) (discussing the Oregon case law).
207. IMWINKELRIED ET AL., supra note 21, § 103.
208. Id.
209. FED. R. EVID. 901.

Vol. 6 [2023], Iss 2023
1, Art. 1
hand, the wording of the flexible principle, Rule 901(a), should not be
changed. It ought to retain open-ended code language.
On the other hand, one of the repeating patterns in the history of
American Evidence law has been a judicial reluctance to apply the broad
authentication principle to new types of exhibits spawned by innovative
technology. For example, due to a fear of manipulation, at common law
courts were initially skeptical of movies and demanded elaborate
foundations. 210 Some of the same skepticism has carried over into the
Federal Rules era. Thus, rather than applying the standard set out in Rule
901(a), initially, several courts applied heightened standards for web
pages, 211 social media posts, 212 and other forms of digital evidence.213
Even today, some courts go beyond Rule 901(b) and demand
unnecessarily strict foundations for audio recordings. 214
As previously stated, broadly worded authentication standards have
the advantage that, in principle, the courts can readily adapt them to novel
types of evidence produced by advancing technology. However, as the
prior judicial experience with movies, audio recordings, and various types
of digital evidence demonstrates, many courts are still hesitant to receive
cutting-edge types of evidence even when the proponent can marshal
enough foundational testimony to satisfy Rule 901(a)’s standard.
Consequently, if the drafters conclude that a particular type of exhibit,
albeit cutting-edge, complies with Rule 901(a), it can be advisable to
supplement code format language with more detailed, catalog-like
language permitting the receipt of that type of evidence. Rule 901(a)-(b)
210. 2 KENNETH S. BROUN, GEORGE E. DIX, PETER M.KACHAMA, DAVID H. KAYE &
ELEANOR SWIFT, MCCORMICK ON EVIDENCE § 216, at 37–38 n. 4 (Robert P. Mosteller ed., 8th ed.
2020), citing McGoorty v. Benhart, 305 Ill. App. 458 (1940).
211. M. Anderson Berry & David Kiernan, Authenticating Web Pages as Evidence,
https://www.law.com/ (Jan. 21, 2010) [https://perma.cc/G4KR-XJJZ] (describing three schools of
judicial thought, one school demanded testimony that the information was posted by the individual to
whom the information is attributed. The courts insisted on a “statement or affidavit from . . . [the
website’s] Web master or someone else with personal knowledge”; the courts refused to permit the
proponent to rely on other forms of circumstantial evidence that would satisfy Rule 901(a)).
212. Paul Grimm, Lisa Yurwit Bergstrom & Melissa M. O’Toole-Loureiro, Authentication of
Social Media Evidence, 36 AM. J. TRIAL ADVOC. 435, 441, 443, 455 (2013) (“an unnecessarily high
bar”); Breanne M. Democko, Social Media and the Rules on Authentication, 43 TOL. L. REV. 367,
369, 371, 388, 391, 405 (2012) (“an extraordinarily high standard of authentication”).
213. St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774–75 (S.D. Tex. 1999).
214. The traditional approach was a seven-element foundation, but there is now significant
movement away from that rigid view. See, e.g., United States v. Lebeau, 867 F.3d 960, 977 (8th Cir.
2017); United States v. Reeves, 742 F.3d 487, 501 (11th Cir. 2014); United States v. Webster, 84 F.3d
1056, 1064 (8th Cir. 1996); United States v. Roach, 28 F.3d 729, 733 (8th Cir. 1994); United States
v. Tartaglione, 228 F.Supp.3d 402, 411 (E.D. Pa. 2017); United States v. Credico, 217 F.Supp.3d 825,
829 (E.D. Pa. 2016), aff’d, 718 Fed.App’x 116 (3d Cir. 2017), cert.denied, 139 S.Ct. 273 (2018).
is an excellent example of a code format supplemented with detailed

illustrations. To its great credit, the Advisory Committee has advanced
amendments to Rule 902 on self-authentication to pave the way for the
admission of certified records generated by an electronic process or
system215 and certified data copies from an electronic device, storage
medium, or file. 216 Those efforts should be ongoing and intensified.
Technology continues to advance, and today, the courts face new
challenges such as deepfakes217 and records maintained in blockchain.218
When the California Evidence Code and Federal Rules of Evidence
were enacted, it was the conventional wisdom that the provisions
governing doctrinal areas other than privilege should be drafted in code
format, broadly stating flexible principles. The drafters seemingly wanted
to prepare language to be used by “busy . . . judges and lawyers”219 at the
trial itself. However, as Part II.B demonstrated, that is no longer the
primary use of those provisions. Rather, in most instances, the provisions
are used pretrial as a basis for evaluating the settlement value of cases to
dispose of the cases short of trial. That reality cuts in favor of, at the very
least, supplementing code format language with more detailed, catalog-
style wording facilitating pretrial case evaluation. Such supplementation
can be useful to overcome the traditional judicial reluctance to embrace
novel, alternative relevance theories and cutting-edge types of exhibits.
V. CONCLUSION
Perhaps, in the best of all possible worlds, lawyers and judges could
work with two sets of evidentiary rules – a pretrial set with bright line
wording to facilitate settlement and a trial set with more flexible wording
215. FED. R. EVID. 902(13).

216. FED. R. EVID. 902(14).
217. Molly Mullen, A New Reality: Deepfake Technology and the World Around Us, 48 MITCH.
HAMLINE L. REV. 210 (2022).
218. DAVID A. SCHLUETER & PETER M.KACHAMA, TEXAS EVIDENTIARY FOUNDATIONS
§ 4.13 (6th ed. 2020). Perhaps sensing that its judiciary might be hesitant to approve this new type of
record maintenance, the Vermont legislature enacted 12 V.S.A. § 1913. Section 1913(b)(1) reads:
A digital record electronically registered in a blockchain shall be self-authenticating
pursuant to Vermont Rule of Evidence 902, if it is accompanied by a written declaration
of a qualified person, made under oath, stating the qualification of the person to make the
certification and:
The date and time the record entered the blockchain;
The date and time the record was received from the blockchain;
That the record was maintained in the blockchain as a regularly conducted activity; and
That the record was made by the regularly conducted activity as a regular practice.
The provision is now incorporated in VT. R. EVID. 902(13).
219. 7 CAL. L. REVISION COMM’N REPS. 34 (1965).

Vol. 6 [2023], Iss 2023
1, Art. 1
to accord the trial judge greater discretion. Developing those two sets may
not be as daunting as it might as it at first seems. To a degree, there are
already differing sets of evidentiary rules—one for different types of trials
and another for different stages of litigation. To begin with, today many
jurisdictions apply different rules to appeals from evidentiary rulings in
bench and jury trials. 220 Moreover, some evidentiary rules are already
applied differently in the pretrial and trial settings. By way of example, as
a practical matter, the courts apply the Rule 103(a)(1)(B) 221 procedural
requirement for a “specific” objection differently in the pretrial and trial
settings; the courts demand greater specificity in pretrial than at trial
where the issue may arise unexpectedly. 222 In addition, many courts apply
the substantive Rule 702223 requirements for expert testimony more laxly
at the pretrial class certification and summary judgment stages. 224
Of course, the reader might think that this inquiry is much adieu
about nothing because various forces, including inertia, might dissuade
decision-makings such as legislatures and courts from undertaking to
revise their evidence provisions. However, that seems highly unlikely.
Consider the history reviewed in this brief Essay: the Model Code in 1942,
the original Uniform Rules in the 1950s, the California Evidence Code in
1967, the Federal Rules of Evidence in 1975, and the adoption of codes
or rules patterned after the Rules in 44 states. There have been no fewer
than 30 substantive amendments to the Federal Rules since their
enactment, 225 and there are currently pending amendments to the Rules.226
Judge Calabresi was surely correct when he proclaimed that this is an age
220. 1 KENNETH S. BROUN, GEORGE E. DIX, PETER M.KACHAMA, DAVID H. KAYE &
ELEANOR SWIFT, MCCORMICK ON EVIDENCE § 60 (Robert P. Mosteller ed., 8th ed. 2020).
221. FED. R. EVID. 103.
222. Edward Imwinkelried, The Pretrial Importance and Adaptation of the “Trial” Evidence
Rules, 25 LOY. L.A. L. REV. 965 (1992). To begin with, it is more feasible to demand greater
specificity pretrial. The setting is often a hearing on an in limine motion, which both sides have had
days or weeks to prepare for. The issue has not arisen on the spur of the moment. Moreover, it is fairer
to demand greater specificity before trial. At trial, the exchange is usually oral; and if the objection is
sustained, the proponent can reframe on the spot. Before trial, the submissions are frequently written;
and the written form of the submissions may make it difficult or impossible for the proponent to adapt
on the spot.
223. FED. R. EVID. 702.
224. KENNETH S. BROUN, GEORGE E. DIX, PETER M.KACHAMA, DAVID H. KAYE &
ELEANOR SWIFT, MCCORMICK ON EVIDENCE § 13 (Robert P. Mosteller ed., Supp. 2022) (collecting
cases).
225. G. Alexander Nunn, The Living Rules of Evidence, 170 U. PA. L. REV. 937, 940–41 (2022).
226. ADVISORY COMMITTEE ON EVIDENCE RULES (May 6, 2022) (Federal Rules of Evidence
2022-2023 Edition pp. 26–27 (the proposed amendment to Rule 106), pp. 149–51 (the proposed
amendment to Rule 615), and pp. 161–63 (the proposed amendment to Rule 702)).
of statutes. 227 That is certainly true in the area of Evidence law. Today, for
the most part an attorney does not turn to a judicial decision or a
constitution to find a governing rule of law; rather, he or she looks for a
statute codifying the rule.
For the foreseeable future, most jurisdictions are likely to have a
single set of statutory provisions, such as the Federal Rules or the
Evidence Code, which purports to apply to both pretrial and trial
proceedings, and occasions will almost undoubtedly arise to revise those
provisions. Those occasions will pose the same question that Professor
Morgan asked American litigators sixty years ago: a creed, a code, or a
catalog. For the most part, American litigators are not spending most of
their time trying cases; instead, their time is consumed settling cases. In
most instances, litigators consult evidence statutes and code primarily to
help them determine the settlement value of their case. And the number
of potential cases is so staggering that it is imperative that the system
encourage settlement. The system can certainly do so by strengthening
substantive rules of limited admissibility such as Rules 408228 and 410229
and considering the adoption of a full-fledged settlement privilege.230
However, the system should also do so by considering the format of its
evidentiary statutes and rules. In one way or another the contemporary
American litigator spends the vast majority of his or her time preparing
for and engaging in settlement negotiations to obviate the need for trial.
The legislatures and courts ought to frankly confront that reality; they
should provide litigators with tools, including evidence statutes and rules,
predominantly designed and suited for that use.
227. GUIDO CALABRESI, A C OMMON LAW FOR THE AGE OR STATUTES (1985).
228. FED. R. EVID. 408 (civil settlement negotiation).
229. FED. R. EVID. 410 (criminal plea bargaining).
230. THE NEW WIGMORE, supra note 37, § 1.3.12.c.

Vol. 6 [2023], Iss 2023

Evidence Legislation and Rules - PETER KACHAMA

Uploaded by

Copyright:

Available Formats

Evidence Legislation and Rules - PETER KACHAMA

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Evidence Legislation and Rules - PETER KACHAMA

Uploaded by

Copyright:

Available Formats

Imwinkelried: Evidence Legislation and Rules

Zambian Open University Law Review

Volume 6 Issue 1 Article 1

An Essay on Drafting Evidence Legislation and Rules: Challenging

Follow this and additional works at: https://ideaexchange.uakron.edu/akronlawreview

Published by Zambian Open Law Review, 1

AN ESSAY ON DRAFTING EVIDENCE LEGISLATION AND

2 ZAMBIAN OPEN UNIVERSITY LAW REVIEW [56:1

*Edward L. Barrett, Jr. Professor of Law Emeritus, University of

1. MODEL CODE OF EVIDENCE (AM. L. INS. 1942).

Published by Zambian Open Law Review, 3

2022] EVIDENCE LEGISLATION AND RULES 3

examination be limited to the matters covered on direct examination?9

4 ZAMBIAN OPEN UNIVERSITY LAW REVIEW [56:1

Published by Zambian Open Law Review, 5

2022] EVIDENCE LEGISLATION AND RULES 5

A conventional wisdom has emerged regarding how the drafters of

25. See infra notes 35–58 and accompanying text.

6 ZAMBIAN OPEN UNIVERSITY LAW REVIEW [56:1

exception31 giving the judge discretion to admit demonstrably reliable,

31. FED. R. EVID. 807.

Published by Zambian Open Law Review, 7

2022] EVIDENCE LEGISLATION AND RULES 7

II. A DESCRIPTION OF THE CONVENTIONAL WISDOM: A CATALOG

A. The Doctrinal Area of Privileges

8 ZAMBIAN OPEN UNIVERSITY LAW REVIEW [56:1

philosopher Jeremy Bentham. 36 In his celebrated 1827 work, Rationale of

Published by Zambian Open Law Review, 9

2022] EVIDENCE LEGISLATION AND RULES 9

4. The injury that would inure to the relation by the disclosure of

43. WIGMORE, supra note 39, at § 2285, 527–28.

10 ZAMBIAN OPEN UNIVERSITY LAW REVIEW [56:1

able to confidently forecast that there will not be a later, judicially

Published by Zambian Open Law Review, 11

2022] EVIDENCE LEGISLATION AND RULES 11

(proposed Rule 503), psychotherapy privilege (proposed Rule 504), and

B. Other Doctrinal Areas in Evidence Law

12 ZAMBIAN OPEN UNIVERSITY LAW REVIEW [56:1

reflected the influence of European civil law thinkers who favored

1. The Model Code of Evidence

2. The Uniform Rules of Evidence

65. Graham, supra note 19, at 293 n.58.

Published by Zambian Open Law Review, 13

2022] EVIDENCE LEGISLATION AND RULES 13

3. The California Evidence Code

14 ZAMBIAN OPEN UNIVERSITY LAW REVIEW [56:1

evidence is admissible.”87 Section 911 restates this principle with respect

87. CAL. EVID. CODE § 351 (West).

Published by Zambian Open Law Review, 15

2022] EVIDENCE LEGISLATION AND RULES 15

4. The Federal Rules of Evidence

94. Id. at § 1200.

16 ZAMBIAN OPEN UNIVERSITY LAW REVIEW [56:1

[T]he Rules of Evidence reached Congress in the aftermath of

102. Carlson, supra note 5, at 14.

Published by Zambian Open Law Review, 17

2022] EVIDENCE LEGISLATION AND RULES 17

privilege rule is to be codified, it ought to be set out in detailed, catalog

108. Witkin, supra note 73, at § 5, at 12.

18 ZAMBIAN OPEN UNIVERSITY LAW REVIEW [56:1